Unravelling the subjects and objects of EU external migration law

Authored by: Elaine Fahey

The Routledge Handbook of Critical European Studies

Print publication date:  December  2020
Online publication date:  December  2020

Print ISBN: 9781138589919
eBook ISBN: 9780429491306
Adobe ISBN:

10.4324/9780429491306-28

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Abstract

This chapter has as its objective the re-reading of EU migration law, by employing insights from EU critical studies. There is an emerging literature on critical EU studies, which has sought to target the place of practice and methodology to overturn key assumptions as to EU integration (e.g. Adler-Nissen 2016). It is a very difficult genre of analytical and normative theorisation to apply to the study of the EU at a moment of significant disintegration and the rise of Euroscepticism spreading so broadly. Still, it is both a practical and empirical turn of emerging analysis. Such a genre, for example, seeks to bring scholars of EU studies closer to the social phenomenon that they want to study and argues for the use of approaches which get scholars closer to the people who construct, perform, and resist the EU on a daily basis (Adler-Nissen 2016, 1). In doing so, it looks to disorder and re-order EU studies and engage more conceptually and practically with its many subjects and objects and thus increasingly reflect critically upon the subjects and objects of the EU law-making and integration processes and challenge the orthodoxy of integration narratives. This is of much significance for legal scholars at this time, analysing EU law and its many sub-fields, which range from trade, to security, to migration, to international relations law. EU international relations law is one of EU law's most all-encompassing and successful subject areas yet lacking a distinctive critical studies genre (Bardutzky and Fahey 2017) and, as explored here, it is studied highly ‘court-centrically’. It traverses awkwardly aspects of the EU's Area of Freedom, Security, and Justice (AFSJ) and includes within its scope EU external migration law. It is thus a significant and useful larger ‘canopy’ under which to situate some of the most complex areas of contemporary EU law. EU AFSJ law is one of the EU's most controversial and expansive policy fields and currently the subject of a booming agenda, despite sitting closest to member states' sovereignty (Fahey 2018). EU external migration law has been labelled to be the most unjust and inhuman in the contemporary global legal order (Costello 2016; Mann 2016; Moreno-Lax 2017). EU external Migration law has been mired by recent waves of de-legalisation and hyper-legalisation (Fahey 2019), leaving the injustice gap to widen and allow a court-centric view to prevail, often with extreme consequences for individuals. This chapter turns a critical lens to this status quo and reflects upon analytical prisms.

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